Signing Statements

Signing statement (United States)

A signing statement is a written pronouncement issued by the President of the United States upon the signing of a bill into law.

There is an ongoing controversy concerning the extensive use of signing statements by President George W. Bush to modify the meaning of laws. In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers".

While it is in theory possible for other executives to issue signing statements, there is no record of notable signing statements by anyone other than an American president.

Types

Studies released in 2003 by political scientist Christopher Kelley and by then-Assistant Attorney General Walter Dellinger grouped signing statements into three categories:

  • Constitutional: asserts that the law is constitutionally defective in order to guide executive agencies in limiting its implementation;
  • Political: defines vague terms in the law to guide executive agencies in its implementation as written;
  • Rhetorical: uses the signing of the bill to mobilize political constituencies.

In recent usage, the phrase "signing statement" has referred mostly to statements relating to constitutional matters that direct executive agencies to apply the law according to the president's interpretation of the Constitution.

Applying a metric to signing statements

There is a controversy about how to count an executive's use of signing statements. A flat count of total signing statements would include the rhetorical and political statements as well as the constitutional. This may give a misleading number when the intent is to count the number of constitutional challenges issued. Another common metric is to count the number of statutes that are disputed by signing statements. This addresses a count of the constitutional issues but may be inherently inaccurate, due not only to ambiguity in the signing statements themselves but also to the method of determining which statutes are challenged.

A Congressional Research Service report issued on September 17, 2007, uses as a metric the percentage of signing statements that contain "objections" to provisions of the bill being signed into law:

President Reagan issued 250 signing statements, 86 of which (34%) contained provisions objecting to one or more of the statutory provisions signed into law. President George H. W. Bush continued this practice, issuing 228 signing statements, 107 of which (47%) raised objections. President Clinton’s conception of presidential power proved to be largely consonant with that of the preceding two administrations. In turn, President Clinton made aggressive use of the signing statement, issuing 381 statements, 70 of which (18%) raised constitutional or legal objections. President George W. Bush has continued this practice, issuing 152 signing statements, 118 of which (78%) contain some type of challenge or objection.

Legal significance

No United States Constitution provision, federal statute, or common-law principle explicitly permits or prohibits signing statements. Article I, Section 7 (in the Presentment Clause) empowers the president to veto a law in its entirety, or to sign it. Article II, Section 3 requires that the executive "take care that the laws be faithfully executed".

Signing statements do not appear to have legal force by themselves, although they are all published in the Federal Register. As a practical matter, they may give notice of the way that the Executive intends to implement a law, which may make them more significant than the text of the law itself. There is a controversy about whether they should be considered as part of legislative history; proponents argue that they reflect the executive's position in negotiating with Congress; opponents assert that the executive's view of a law is not constitutionally part of the legislative history because only the Congress may make law.

Presidential signing statements maintain particular potency with federal executive agencies, since these agencies are often responsible for the administration and enforcement of federal laws. A 2007 article in the Administrative Law Review noted how some federal agencies' usage of signing statements may not withstand legal challenges under common law standards of judicial deference to agency action.

Supreme Court rulings

The Supreme Court has not squarely addressed the limits of signing statements. Marbury v. Madison (1803) and its progeny are generally considered to have established judicial review as a power of the Court, rather than of the Executive. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), established court deference to executive interpretations of a law " if Congress has not directly spoken to the precise question at issue" and if the interpretation is reasonable. This applies only to executive agencies; the President himself is not entitled Chevron deference. To the extent that a signing statement would nullify part or all of a law, the Court may have addressed the matter in Clinton v. City of New York (1998), which invalidated the line-item veto because it violated bicameralism and presentment.

In Hamdan v. Rumsfeld (2006), the Supreme Court gave no weight to a signing statement in interpreting the Detainee Treatment Act of 2005, according to that case's dissent (which included Justice Alito, a proponent of expanded signing statements when he worked in the Reagan Justice Department — see "Presidential Usage" below).

Presidential usage

The first president to issue a signing statement was James Monroe. Until the 1980s, with some exceptions, signing statements were generally triumphal, rhetorical, or political proclamations and went mostly unannounced. Until Ronald Reagan became President, only 75 statements had been issued; Reagan and his successors George H. W. Bush and Bill Clinton produced 859 signing statements among the three of them. By the end of 2004, George W. Bush had issued 108 signing statements containing 505 constitutional challenges. As of January 30, 2008, he had signed 157 signing statements challenging over 1,100 provisions of federal law.

The upswing in the use of signing statements during the Reagan administration coincides with the writing by Samuel A. Alito — then a staff attorney in the Justice Department's Office of Legal Counsel — of a 1986 memorandum making the case for "interpretive signing statements" as a tool to "increase the power of the Executive to shape the law." Alito proposed adding signing statements to a "reasonable number of bills" as a pilot project, but warned that "Congress is likely to resent the fact that the President will get in the last word on questions of interpretation.

A November 3, 1993 memo from White House Counsel Bernard Nussbaum explained the use of signing statements to object to potentially unconstitutional legislation:

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.

This same Department of Justice memorandum observed that use of Presidential signing statements to create legislative history for the use of the courts was uncommon before the Reagan and Bush Presidencies. In 1986, Attorney General Edwin Meese III entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history.

Controversy over George W. Bush's use of signing statements

George W. Bush's use of signing statements is controversial, both for the number of times employed (estimated at over 750 opinions) and for the apparent attempt to nullify legal restrictions on his actions through claims made in the statements — for example, his signing statement attached to the National Defense Authorization Act for Fiscal Year 2008. Some opponents have said that he in effect uses signing statements as a line-item veto; the Supreme Court had previously ruled such vetoes as unconstitutional in the 1998 case, Clinton v. City of New York. Previous administrations had made use of signing statements to dispute the validity of a new law or its individual components. George H. W. Bush challenged 232 statutes through signing statements during four years in office and Clinton challenged 140 over eight years. George W. Bush's 130 signing statements contain at least 1,100 challenges. In the words of a New York Times commentary:
And none have used it so clearly to make the president the interpreter of a law's intent, instead of Congress, and the arbiter of constitutionality, instead of the courts.

Some have defended presidential signing statements as "legitimate". For example, according to a member of the United States Department of Justice:

Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.
An editorial in The Wall Street Journal stated:
In its new "study," the ABA claims that Presidential "signing statements" are "contrary to the rule of law and our constitutional system" and urges Congress to pass a law giving itself the power to challenge them in court. It then advances a theory under which the President has no authority to judge for himself the Constitutionality of the various laws he signs. This is absurd on its face given that the President takes an oath to "preserve, protect and defend the Constitution of the United States," thus obliging him to form an independent opinion of what this requires.

The signing statement associated with the Detainee Treatment Act of 2005, prohibiting cruel, inhuman and degrading treatment of detainees in U.S. custody attracted controversy:

"The executive branch shall construe... the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power...."

This statement explicitly invokes the unitary executive theory, which according to its adherents argues that the President, in his capacity of Commander-in-Chief, cannot be bound by any law or by Congress, since anything hindering him in that capacity can be considered unconstitutional. With his signing statement to the McCain Detainee Amendment, the President has reserved his authority not to be bound by laws passed by Congress.

In a January 30, 2008, editorial, the New York Times declared, "Over the last seven years, Mr. Bush has issued hundreds of these insidious documents declaring that he had no intention of obeying a law that he had just signed.

Former Vice-President Al Gore wrote in The Assault on Reason, "One of President Bush's most contemptuous and dangerous practices has been his chronic abuse of what are called 'signing statements.'" He continues later saying, "This helps explain why Bush has vetoed only one bill during his entire term in office [at the time]. Why bother, if he can simply decide on his own whim which provisions of a law apply to him and which ones he'll simply ignore" (Gore 2007:223-225)?

Blue ribbon panel on signing statements

On July 24, 2006, the American Bar Association's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, appointed by ABA President Michael S. Greco, issued a widely publicized report condemning some uses of signing statements. The task force report and recommendations were unanimously approved by ABA delegates at their August 2006 meeting.

The bipartisan and independent blue ribbon panel was chaired by Miami lawyer Neal Sonnett, a former Assistant U.S. Attorney and Chief of the Criminal Division for the Southern District of Florida. He is past chair of the ABA Criminal Justice Section, chair of the ABA Task Force on Domestic Surveillance and the ABA Task Force on Treatment of Enemy Combatants; and president-elect of the American Judicature Society.

The report stated in part:

Among those unanimous recommendations, the Task Force voted to:

*oppose, as contrary to the rule of law and our constitutional system of separation of powers, a President's issuance of signing statements to claim the authority or state the intention to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress;

*urge the President, if he believes that any provision of a bill pending before Congress would be unconstitutional if enacted, to communicate such concerns to Congress prior to passage;

*urge the President to confine any signing statements to his views regarding the meaning, purpose, and significance of bills, and to use his veto power if he believes that all or part of a bill is unconstitutional;

*urge Congress to enact legislation requiring the President promptly to submit to Congress an official copy of all signing statements, and to report to Congress the reasons and legal basis for any instance in which he claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress, and to make all such submissions be available in a publicly accessible database.

Congressional efforts to restrict signing statements

Sen. Arlen Specter (R-Pa.) introduced the Presidential Signing Statements Act of 2006 on July 26, 2006. The bill would:

  1. Instruct all state and federal courts to ignore presidential signing statements. ("No State or Federal court shall rely on or defer to a presidential signing statement as a source of authority.")
  2. Instruct the Supreme Court to allow the U.S. Senate or U.S. House of Representatives to file suit in order to determine the constitutionality of signing statements.

The bill was referred to the Senate Judiciary Committee, which Specter formerly chaired, on the day it was introduced. As with all unpassed bills, it expired with the end of the 109th United States Congress on 9 December 2006.

Specter reintroduced the legislation with the Presidential Signing Statements Act of 2007.

See also

References

  • Gore, Al (2007). The Assault on Reason, New York: The Penguin Press. ISBN 978-1-59420-122-6

External links

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